JUDGMENT. R (on the application of HS2 Action Alliance Limited) (Appellant) v The Secretary of State for Transport and another (Respondents)

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1 Hilary Term [2014] UKSC 3 On appeal from: [2013] EWCA Civ 920; [2013] EWHC 481 Admin JUDGMENT R (on the application of HS2 Action Alliance Limited) (Appellant) v The Secretary of State for Transport and another (Respondents) R (on the application of Heathrow Hub Limited and another) (Appellants) v The Secretary of State for Transport and another (Respondents) R (on the application of Hillingdon London Borough Council and others) (Appellants) v The Secretary of State for Transport (Respondent) before Lord Neuberger, President Lady Hale, Deputy President Lord Mance Lord Kerr Lord Sumption Lord Reed Lord Carnwath JUDGMENT GIVEN ON 22 January 2014 Heard on 15 and 16 October 2013

2 Appellant David Elvin QC Charles Banner (Instructed by King & Wood Mallesons LLP) Respondent Tim Mould QC James Maurici QC Jacqueline Lean Richard Turney (Instructed by Treasury Solicitors) Appellant Charles Banner (Instructed by Nabarro LLP) Respondent Tim Mould QC James Maurici QC Jacqueline Lean Richard Turney (Instructed by Treasury Solicitors) Appellant Nathalie Lieven QC Kassie Smith QC (Instructed by Harrison Grant Solicitors) Respondent Tim Mould QC James Maurici QC Jacqueline Lean Richard Turney (Instructed by Treasury Solicitors)

3 LORD CARNWATH (with whom Lord Neuberger, Lord Mance, Lord Kerr, Lord Sumption and Lord Reed agree) 1. These appeals arise out of the decision of the government to promote the high speed rail link from London to the north known as HS2. The decision was announced in a command paper, High Speed Rail: Investing in Britain's Future - Decisions and Next Steps (Cm 8247, 10 January 2012). (It has been referred to in the proceedings as the DNS.) The main issues, in summary, are, first, whether it should have been preceded by strategic environmental assessment, under the relevant European Directive, and, secondly, whether the hybrid bill procedure, as currently proposed, will comply with the procedural requirements of European law. The Court of Appeal decided both issues against the appellants, the first by a majority (Sullivan LJ dissenting). We also need to consider the possibility of referring either question to the European court ( CJEU ). The appellants 2. In the first appeal, the HS2 Action Alliance is a not-for-profit organisation working with over 90 affiliated action groups and residents' associations in opposition to the HS2 scheme. The appellants in the Hillingdon appeal are local authorities along the proposed route of Phase 1 of HS2. They are all members of the 51M group, a group of local authorities which joined together in a national campaign to oppose the HS2 rail proposals. In the third appeal, Heathrow Hub Limited ( HHL ) has for many years promoted the concept of a multi-modal transport hub at Heathrow Airport, integrating Heathrow with road, conventional mainline railway and high speed rail services. Factual background 3. In January 2009, the previous government established a company called High Speed Two Limited ( HS2 Ltd ) to advise on proposals for a new railway from London to the West Midlands and potentially beyond. In December 2009 HS2 Ltd reported to the Secretary of State. The options for routes north of Birmingham include what became the preferred Y-shaped network and two others known as the reverse S and the reverse E configurations. On 15 December 2009, the Secretary of State made a statement to Parliament setting out his proposed next steps, including a White Paper by the end of March 2010, followed by a full public consultation in the autumn of 2010, leading to preparation of a hybrid Bill. Page 2

4 4. On 11 March 2010, the Department for Transport published a Command Paper entitled High Speed Rail (Cm 7827), along with HS2 Ltd's report and other technical reports. The initial core high speed network would link London to Birmingham, Manchester, the East Midlands, Sheffield and Leeds, and be capable of carrying trains at up to 250 miles per hour. It would take the form of a Y-shaped network of around 335 miles. The paper explained the government s reasons in the light of the HS2 Ltd studies for preferring it to the reverse S and reverse E configurations. The studies had shown that as a first step a high speed line from London to Birmingham would offer high value for money. There would be connections to existing tracks to allow direct high speed train services to destinations further north. The capacity so released would be used to expand commuter, regional and freight service on existing lines. 5. The first phase would run from a rebuilt Euston Station to a new Birmingham City Centre Station. Following further work by HS2 Ltd, formal public consultation would begin in the autumn. At the same time detailed planning work would begin on the routes from Birmingham to Manchester and Leeds, with a view to public consultation in early High speed access to Heathrow would be provided by a link with Crossrail and the Heathrow Express, but the government had appointed Lord Mawhinney to assess the options for a potential station at Heathrow. 6. As to the procedure it was stated, at p 9, point 17: That powers to deliver this proposed high speed rail network should be secured by means of a single Hybrid Bill, to be introduced subject to public consultation, environmental impact assessment and further detailed work on funding and costs to feed into decisions to be taken in the next Spending Review. Depending on Parliamentary timescales and approval, this could allow construction to begin after the completion of London's Crossrail line, opening from 2017, with the high speed network opening in phases from Following the general election in May 2010, the proposals were adopted by the new Coalition Government, but it was indicated that due to financial constraints it would be achieved in phases. In June 2010 Lord Macwhinney reported that there was no compelling case for a direct high speed link to Heathrow. In October 2010, following further work by HS2 Ltd, the Secretary of State announced the preferred option for north of Birmingham involving two separate corridors, one via Manchester and the other via the East Midlands (the Y-network ). In December the Secretary of State published details of the Page 3

5 proposed route for Phase 1 between London and Birmingham. The proposed route included provision for a spur link to Heathrow Airport, to be built later at the same time as the lines to Leeds and Manchester. 8. In February 2011, the government opened formal public consultation on the high speed rail proposals, including the proposed Y-network, and the preferred route for Phase 1 from London to the West Midlands. There was a consultation report entitled High Speed Rail: Investing In Britain's Future, accompanied by an Appraisal of Sustainability, and other economic and technical studies. The Secretary of State s foreword described the consultation as one of the largest and most wide-ranging ever undertaken by Government. The government would announce the result of the consultation and final decisions on its strategy for high speed rail before the end of Among other responses, the 51M group submitted an extensive consultation response objecting to the principle of HS2, challenging the government s case on business and capacity grounds, expressing concerns over the environmental impact, and arguing that the Appraisal of Sustainability had not been properly carried out or consulted upon with regard to other alternatives. In particular it submitted that any necessary increase in capacity could be provided more cost effectively by an alternative proposal, known as the optimised alternative, based on improving existing lines and services. Camden Council submitted a separate response raising concerns about the impact on the community and infrastructure around Euston. HHL contended that the mainline of HS2 should run via Heathrow. 10. On 10 January 2012, the Department for Transport published the DNS. It included confirmation of the government's high speed rail strategy and a summary of its decisions, a review of the consultation responses, and statement of the next steps. With regard to alternatives, it was noted that relatively few responses had discussed the merits of the proposed Y-network, but so far as alternatives were put forward the government remained of the view for the reasons given previously that its proposal offered the most effective approach. Under the heading Alternatives to high speed rail, the paper considered options for upgrading the existing network, including the optimised alternative proposed by the 51M group. It was concluded that the approach of upgrading the existing network would be incapable of matching the scale of the benefits that could be provided by a new high speed rail line, although it accepted that such alternatives would be expected to have some advantages, such as lower sustainability impacts than entirely new lines, including smaller impacts on noise, landscape and townscape. The overall conclusion was that any sustainability and cost advantages are outweighed by the substantial disbenefits of enhancing existing lines (paras ). The DNS set out the process by which the government intended to obtain development consent for Page 4

6 HS2, namely through two Hybrid Bills in Parliament, the first for Phase 1 and the second for Phase The DNS also stated that following consultation safeguarding directions would be issued under the planning laws to safeguard the Phase 1 route corridor adopted by the DNS from incompatible development. Consultation on safeguarding was started in October 2012 and completed in January On 9 July 2013, the Safeguarding Direction was made. The effect is that the Secretary of State will be notified if a local planning authority is minded to grant planning permission for any development which HS2 Ltd considers would conflict with the Phase 1 route corridor, and the Secretary of State has power to give directions restricting the grant of planning permission, either indefinitely or during such a period as may be specified. 12. The making of the Safeguarding Direction also triggered the statutory blight procedures. Eligible property owners within the safeguarded area may serve a blight notice asking the Secretary of State to buy their property prior to it being needed for construction. A High Speed Rail (Preparation) Bill was introduced into the House of Commons on 13 May 2013 and received Royal Assent on 21 November It was described as a paving bill to enable the Secretary of State to incur essential expenditure on preparatory works to allow the construction programme to proceed as quickly as possible following Royal Assent for the main bill. 13. Meanwhile, work on Phase 2 continued. Public consultation on the detailed route for Phase 2 of the Y-network began on 17 July It took the form of a consultation paper ( Consultation on the route from the West Midlands to Manchester, Leeds and beyond ), with supporting documents. The proposals for Phase 2 were broadly in accordance with the Government's High Speed Rail Strategy as set out in the DNS. The paper states that the current intention is to bring forward a hybrid Bill for Phase 2 in the next Parliament, following the May 2015 General Election. Judicial Review 14. The present proceedings were commenced in April Following a ten day hearing in December 2012, Ouseley J gave judgment on 15 March The judgment is a tour de force running to 844 paragraphs, and dealing with a wide range of issues, most of which happily are no longer in dispute. He upheld the claim in relation to certain aspects of the consultation process, but dismissed it on the issues relevant to the present appeal. The Court of Appeal (Lord Dyson MR, Richards and Sullivan LJJ) following a hearing in June 2013, Page 5

7 gave judgment dismissing the appeal on 24 July I will need to return to the reasoning of the judgments below when considering the submissions before the Supreme Court. 15. The issues before this court can be summarised as follows: i) SEA whether the DNS in the circumstances of HS2 is a plan or programme which sets the framework for development consent and was required by administrative provisions within the meaning of articles 2-3 of Directive 2001/42/EC ( the SEA Directive ). ii) Aarhus whether if the interpretation of the majority in the Court of Appeal is correct, article 3(2)(a) of the SEA Directive is inconsistent with article 7 of the Aarhus Convention, and if so with what consequences. iii) EIA/Hybrid Bill whether the Hybrid Bill procedure as proposed meets the requirements of Directive 2011/92/EU ( the EIA Directive ), taking account in particular that (a) issues of principle will be excluded from the Select Committee stage, and (b) the debate on the Bill at Second and Third Reading will be subject to a Government whip. iv) Timing whether the court should intervene at this stage, or whether the court should wait until the Parliamentary process is completed; v) CJEU reference whether any of the above questions raise uncertain issues of European law on which a reference should be made to the European court. Since the hearing the hybrid bill for Phase 1 has been introduced to Parliament and received its first reading on 25 November The issues relating to the parliamentary process (iii) and (iv) will be discussed by Lord Reed, with whose reasoning and conclusions I agree. The SEA Directive Page 6

8 16. The relevant provisions of the directive and extracts from the authorities are quoted at length in the judgment of the Master of the Rolls. I can therefore be more selective. At issue is the interpretation of article 3 which provides: 1. An environmental assessment, in accordance with Articles 4 to 9, shall be carried out for plans and programmes referred to in paragraphs 2 to 4 which are likely to have significant environmental effects. 2. Subject to paragraph 3, an environmental assessment shall be carried out for all plans and programmes, (a) which are prepared for agriculture, forestry, fisheries, energy, industry, transport, waste management, water management, telecommunications, tourism, town and country planning or land use and which set the framework for future development consent of projects listed in Annexes I and II to [the EIA Directive]. HS2 is such a transport project. 17. By article 2(a) plans and programmes means plans and programmes - - which are subject to preparation and/or adoption by an authority at national, regional or local level or which are prepared by an authority for adoption, through a legislative procedure by Parliament or Government, and - which are required by legislative, regulatory or administrative provisions. 18. Although not directly applicable, attention should be drawn also to articles 3.4 and 3.5, by which member states are required to determine whether plans and programmes, other than those referred to in paragraph 2, which set the framework for future development consent of projects, are likely to have significant environmental effects. In making that determination on a case-bycase examination, they are required to take into account the criteria set out in Annex II. Those criteria include: Page 7

9 The characteristics of plans and programmes, having regard, in particular, to - the degree to which the plan or programme sets a framework for projects and other activities, either with regard to the location, nature, size and operating conditions or by allocating resources, - the degree to which the plan or programme influences other plans and programmes including those in a hierarchy, We were referred to three relevant European authorities on the interpretation of the definition: (i) Terre wallonne ASBL and Inter-Environnement Wallonie ASBL v Région wallonne (Joined Cases C-105/09 and C-110/09) [2010] ECR I-5611 ( Terre wallonne ) (ii) Inter-Environnement Bruxelles ASBL v Région de Bruxelles- Capitale (Case C-567/10) [2012] 2 CMLR 909 ( I-E Bruxelles ) (iii) Nomarchiaki Aftodioikisi Aitoloakarnanias v Ipourgos Perivallontos, Khorotaxias kai Dimosion Ergon (Case C-43/10) [2013] Env. L. R. 453 (Grand Chamber) ( Nomarchiaki ) 20. The debate in this court has centred on two parts of the definition: required by administrative provisions and set the framework for future development consent Required by administrative provisions 21. As explained by the CJEU, the word required in this context means no more than regulated : I-E Bruxelles para 31. But it is less clear how that concept applies to administrative, as opposed to legislative or regulatory, Page 8

10 provisions. In Walton v The Scottish Ministers [2012] UKSC 44; [2013] PTSR 51, at para 99, I said: There may be some uncertainty as to what in the definition is meant by 'administrative', as opposed to 'legislative or regulatory', provisions. However, it seems that some level of formality is needed: the administrative provisions must be such as to identify both the competent authorities and the procedure for preparation and adoption. 22. The appellants submitted that the March 2010 Command Paper satisfied this part of the definition, since it determined the competent authority for adopting the plan and the procedure for preparing it. The majority in the Court of Appeal were inclined to agree, adopting a broad and purposive interpretation, but found it unnecessary to reach a decision on this point (para 71). Sullivan LJ held that this part of the definition was satisfied: although there were some changes to the procedure set out in the 2010 Command Paper, the process there described was in substance followed by the new government, and to that extent regulated the preparation and adoption of the DNS (paras ). Mr Mould was disposed to accept that the 2010 Paper was at least arguably an administrative provision within this part of the definition, but not that it regulated the procedure in the formal sense. 23. I am prepared to proceed on the assumption that Sullivan LJ was right on this point, or at least that there is a referable issue on the meaning of that part of the definition. I therefore turn to what emerged as the principal issue between the parties, that is the reference to a plan or programme which sets the framework for future development consent. Setting the framework The authorities 24. Terre wallonne concerned an action programme adopted under article 5(1) of Directive 91/676 concerning the protection of waters against pollution caused by nitrates from agricultural sources. The issue was whether it fell within article 3(2)(a) of the SEA Directive on the basis that it set the framework for future development consent of intensive livestock installations (listed in Annexes I and II to the EIA Directive). As Advocate General Kokott explained (paras 60-67), the main issue for the court was how strongly the requirements of the plans or programmes must influence individual projects Page 9

11 in order to come within the definition. This was against the background of arguments by certain member states that the framework must determine the location, nature or size (her emphasis) of projects requiring environmental assessment. She rejected that view as too narrow. She concluded: 67. To summarise, it can therefore be said that a plan or programme sets a framework in so far as decisions are taken which influence any subsequent development consent of projects, in particular with regard to location, nature, size and operating conditions or by allocating resources. 25. In deciding that the definition did apply to the instant case she noted that under article 8 of the EIA Directive consideration must be given not only to direct effects of the planned works, but also to effects on the environment arising from their use, including in this case the effects on water quality resulting from intensive lifestock installations, and that therefore disposal of manure arising had to be considered (para 80). She concluded: In the context of such consideration, the framework set by the action programme has at least the effect that it must be possible for the installation to be operated in accordance with the provisions of the programme. At the same time, however, development consent can hardly be refused on grounds of the pollution of waters by nitrate from agriculture if the project complies with the rules of the programme. Certain alternatives, which are harmful to the environment as gauged by the objectives of the action programme, are thus excluded and others, which possibly afford water greater protection, do not have to be examined and taken into consideration. (para 82 emphasis added) As I read her opinion, the references to influence in the earlier paragraphs were to indicate that something less than a specific determination of the nature of the project would suffice. On the other hand, the latter paragraph shows that influence as such might not be enough; the critical factor was that consideration of certain environmental effects would in practice be excluded altogether. 26. The court (paras 52-54) agreed with her as to the relevance of article 8 of the EIA Directive, and noted that under article 5(4) of Directive 91/676 action programmes must provide for a set of measures compliance with which Page 10

12 can be a requirement for issue of the consent, including requirements for storage of livestock manure. It concluded: 54. In such a situation, the existence and scope of which it is nevertheless for the national court to assess in the light of the action programme concerned, it must be held that the action programme is to be regarded, in respect of those measures, as setting the framework for future development consent of projects listed in Annexes I and II of Directive 85/337 within the meaning of Article 3(2)(a) to Directive 2001/42. Accordingly, in answer to the relevant question, it held that an action programme adopted pursuant to article 5(1) of Directive 91/676 was in principle a plan or programme covered by article 3(2)(a) since it constituted a plan or programme within the meaning of article 2(a) and contains measures compliance with which is a requirement for issue of the consent that may be granted for carrying out projects listed in Annexes I and II to Council Directive 85/ In I-E Bruxelles, the court held that the repeal of a land use plan was capable of falling within the scope of the SEA Directive, even in the absence of any specific reference in its text to repeal (as opposed to modification ). The court rejected a narrow interpretation as contrary to the objective of the directive to provide for a high level of protection of the environment (para 30): That interpretation would thus run counter to the directive's aim of establishing a procedure for scrutinising measures likely to have significant effects on the environment, which define the criteria and the detailed rules for the development of land and normally concern a multiplicity of projects whose implementation is subject to compliance with the rules and procedures provided for by those measures. (emphasis added) 28. The same formula (emphasised in the above quotation) was adopted by the Grand Chamber in Nomarchiaki. The case concerned a controversial project for the diversion of the River Acheloos in western Greece, to serve the irrigation and energy needs of the region of Thessaly. One of many issues was whether it should be regarded as a plan or programme within the meaning of the SEA Directive. Differing from the Advocate General, the court said no, and dealt with the issue very briefly (para 95): Page 11

13 It is not evident that the project concerned constitutes a measure which defines criteria and detailed rules for the development of land and which subjects implementation of one or more projects to rules and procedures for scrutiny (see, to that effect, [Inter- Environnement Bruxelles and Others (Case C-567/10) [2012] CMLR 909, para 30)].. (emphasis added) The Court of Appeal 29. In the Court of Appeal a joint judgment was given by the Master of the Rolls and Richards LJ. Having referred to the paradigm case of a statutory development plan, and building on the Advocate General s discussion in Terre wallone, they spoke of the different degrees of influence which a plan might have: At one end of the spectrum is the plan or programme which conclusively determines whether consent is given and all material conditions. Such a plan or programme clearly sets the framework. It is an example of legal influence of highest order. At the other end of the spectrum is the plan or programme which identifies various development options, but which states that the decisionmaker is free to accept or reject all or any of the options. (para 54) 30. In their view, however, it was not necessary for the plan to be legally binding: We would not rule out the possibility that a plan or programme may set the framework where it has sufficiently potent factual influence, but (as we shall explain) not where the decision-maker is Parliament. If it is clear that the decision-maker will follow the recommendations contained in a plan or programme and the measures are likely to have significant effects on the environment, then the mere fact that the decision-maker is not legally obliged to make a decision in accordance with the plan or programme might not be a sufficient reason for holding that the plan or programme does not set the framework. But in our view, there must at least be cogent evidence that there is a real likelihood that a plan or programme will influence the decision if it is to be regarded as setting the framework (para 50, emphasis added) Page 12

14 31. Applying the test as set out in the italicised words, they agreed with Ouseley J that the DNS was not within the definition. The DNS would have no legal influence on Parliament, which was not obliged to comply with it or even to have regard to it in reaching its decision. Nor was it appropriate or possible for the court to assess the degree of influence the DNS was likely to have as a matter of fact on Parliament's decision-making process: Parliament is constitutionally sovereign and free to accept or reject statements of Government policy as it sees fit, and the court should not seek to second guess what Parliament will do. Moreover the decision whether to give consent to the project as outlined in the DNS is very controversial and politically sensitive. No final decision has yet been taken as to the form or length of debate that is to take place in Parliament. (para 56) 32. Sullivan LJ was concerned that the majority s interpretation would leave an undesirable gap in strategic environmental protection; governments would be able to avoid the need for strategic environmental assessment by promoting specific acts of legislation (paras 154-7). He applied the same test as the majority but disagreed as to the result. He considered that there was cogent evidence of a real likelihood that the DNS would influence Parliament s decision. In the present context (by contrast with that of the conventional development control process), he rejected as unrealistic a distinction between the role of the government as promoter of the scheme and its role in the Parliamentary decision-making process: When considering the status of the DNS in the hybrid Bill procedure it must be recognised that the Government has a dual role. Having devised the plan the Government is not merely the promoter of the project, it will actively participate in the decision-making process under the hybrid Bill procedure. Parliament is constitutionally distinct from the executive, but members of the Government are members of Parliament The well-established convention of collective ministerial responsibility will ensure that the plan prepared by the Government (the DNS) will in fact have a very significant influence on Parliament's decision making process in respect of a Government Bill. (para 173) Drawing a parallel with the purposive approach of the CJEU to legislative decisions in the context of the EIA, he thought that the court should look at the substance and not simply the constitutional formality of the entire decision-making process (para 174). Page 13

15 33. The arguments in this court have broadly followed those summarised in the judgments of the Court of Appeal, and reflected in the respective views of the majority and minority. They have been developed at considerable length in the written and oral submissions to this court. I hope I will be forgiven for not attempting to summarise them further in this judgment. The difference between the parties in the end comes down to a relatively short point of construction of the directive and its application to the special facts of this case. Discussion Introductory comments 34. In Lord Reed s judgment in Walton v Scottish Ministers [2013] PTSR 51, para 10ff, there is a detailed discussion of the evolution and general purpose of the relevant directives. It is unnecessary to repeat it here. He cited in particular (para 12 of that judgment) the helpful discussion by Advocate General Kokott (in Terre wallone, points 31-32) of the evolution of the SEA Directive to fill a perceived gap in the EIA regime: The application of the EIA Directive revealed that, at the time of the assessment of projects, major effects on the environment are already established on the basis of earlier planning measures Whilst it is true that those effects can thus be examined during the environmental impact assessment, they cannot be taken fully into account when development consent is given for the project. It is therefore appropriate for such effects on the environment to be examined at the time of preparatory measures and taken into account in that context. He referred also (para 14 of that judgment) to an extract from the European Commission s first report on the application of the SEA Directive ((COM(2009) 469 final, para 4.1): The two Directives are to a large extent complementary: the SEA is 'up-stream' and identifies the best options at an early planning stage, and the EIA is 'down-stream' and refers to the projects that are coming through at a later stage. In theory, an overlap of the two processes is unlikely to occur. However, different areas of potential overlaps in the application of the two Directives have been identified. Page 14

16 In particular, the boundaries between what constitutes a plan, a programme or a project are not always clear, and there may be some doubts as to whether the 'subject' of the assessment meets the criteria of either or both of the Directives. 35. It should be borne in mind also that, although the expression strategic is commonly used in shorthand descriptions of the directive, it is not a word that appears in the text. The correct title is Directive on the assessment of the effects of certain plans and programmes on the environment. It is not therefore to be assumed, as some of Mr Elvin s submissions seemed to imply, that because a project is strategic in nature (as HS2 undoubtedly is) the presumption must be in favour of assessment under this directive. The purpose is more specific, that is to prevent major effects on the environment being predetermined by earlier planning measures before the EIA stage is reached. 36. Against that background, and unaided by more specific authority, I would have regarded the concept embodied in article 3.2 as reasonably clear. One is looking for something which does not simply define the project, or describe its merits, but which sets the criteria by which it is to be determined by the authority responsible for approving it. The purpose is to ensure that the decision on development consent is not constrained by earlier plans which have not themselves been assessed for likely significant environmental effects. That approach is to my mind strongly supported by the approach of the Advocate General and the court to the facts of Terre wallone and by the formula enunciated in I-E Bruxelles and adopted by the Grand Chamber in Nomarchiaki. 37. In relation to an ordinary planning proposal, the development plan is an obvious example of such a plan or programme. That is common ground. Even if as in the UK it is not prescriptive, it nonetheless defines the criteria by which the application is to be determined, and thus sets the framework for the grant of consent. No doubt the application itself will have been accompanied by plans and other supporting material designed to persuade the authority of its merits. In one sense that material might be said to set the framework for the authority s consideration, in that the nature of the application limits the scope of the debate. However, no one would for that reason regard the application as a plan or programme falling within the definition. 38. In principle, in my view, the same reasoning should apply to the DNS, albeit on a much larger scale. It is a very elaborate description of the HS2 project, including the thinking behind it and the government s reasons for rejecting alternatives. In one sense, it might be seen as helping to set the framework for the subsequent debate, and it is intended to influence its result. Page 15

17 But it does not in any way constrain the decision-making process of the authority responsible, which in this case is Parliament. As Ouseley J said: 96. The very concept of a framework, rules, criteria or policy, which guide the outcome of an application for development consent, as a plan which requires SEA even before development project EIA, presupposes that the plan will have an effect on the approach which has to be considered at the development consent stage, and that that effect will be more than merely persuasive by its quality and detail, but guiding and telling because of its stated role in the hierarchy of relevant considerations. That simply is not the case here. 39. With respect to Sullivan LJ, I do not think that position is materially changed by what he called the dual role of government. Formally, and in reality, Parliament is autonomous, and not bound by any criteria contained in previous government statements. 40. I have noted that the majority and the minority in the Court of Appeal adopted the same test, turning on the likelihood that the plan or programme would influence the decision. The majority referred to the possibility of the plan having a sufficiently potent factual influence (para 55). Although Mr Mould generally supported the reasoning of the majority, he submitted that influence in the ordinary sense was not enough. The influence, he submitted, must be such as to constrain subsequent consideration, and to prevent appropriate account from being taken of all the environmental effects which might otherwise be relevant. 41. In my view he was right to make that qualification. A test based on the potency of the influence could have the paradoxical result that the stronger the case made in favour of a proposal, the greater the need for strategic assessment. Setting a framework implies more than mere influence, a word which is not used by the court in any of the judgments to which we have been referred. It appears in annex II of the directive, but only in the different context of one plan influencing another. In Terre wallone Advocate General Kokott spoke of influence, but, as already noted, that was by way of contrast with the submissions before her which suggested the need for the plan to be determinative. 42. Finally, Mr Elvin pointed to the fact that the DNS had specific legal consequences, notably in the safeguarding direction, and the consequent application of the related blight provisions, and also in providing the basis for Page 16

18 the paving Bill, and for the allocation of resources under it. I accept that these points provide an arguably material distinction from the supporting material for a conventional planning application. However, they do not imply any further constraint on Parliament s consideration of the environmental impacts of the project as a whole, under the hybrid Bill procedure. Practical consequences 43. Sullivan LJ was concerned that the majority s interpretation would leave a gap in the environmental protection provided by the directives. It is helpful to consider this concern in the context of the facts of the present case. The government s case from the beginning has been that the SEA Directive has no application because neither the DNS, nor anything which preceded it, was a plan or programme as there defined. They accept however that as a project within the meaning of the EIA Directive it must be subject to environmental assessment in a modified form adapted to the proposed legislative procedure (as discussed by Lord Reed). 44. It is common ground, as I understand it, that the difference between the two procedures is significant principally in relation to the treatment of alternatives. The respective requirements are: i) SEA Directive Article 5 provides that the environmental report must identif[y] describ[e] and evaluat[e] the likely significant effects on the environment of implementing both the plan or programme itself, and reasonable alternatives. Annex 1 sets out the information to be given, including an outline of the reasons for selecting the alternatives dealt with and a description of how the assessment was undertaken. ii) EIA Directive Article 5 requires the statement to include the information specified in annex IV, which includes simply an outline of the main alternatives studied by the developer and an indication of the main reasons for this choice, taking into account the environmental effects. The reasons for this difference are not obvious. It may simply reflect the different stages at which the two exercises are carried out. At the earlier stage of strategic assessment neither the proposed plan nor the alternatives will need to have been worked up to the same degree of detail as will be appropriate at Page 17

19 the EIA stage. At the latter stage to require an equivalent degree of detail for the rejected alternatives may be seen as unduly burdensome. 45. In any event, it was not in dispute between the parties that the treatment of alternatives required under the SEA Directive is more detailed than under the EIA, and that it was not satisfied in this case. It is also common ground that compliance with the SEA Directive at this stage would be possible, but that it would involve significant delay. Mr Mould on instructions, and without dissent, spoke of an added delay of six months to a year. 46. There is also a measure of agreement as to what such additional consideration would involve. Ouseley J considered whether, in spite of the government s position that such treatment was unnecessary, substantial compliance had been achieved (paras ). In a passage the reasoning of which has not been challenged before this court, he concluded that it had not been achieved, for reasons essentially related to the Y-network and its alternatives, and the spurs to Heathrow. On the other hand, as Mr Mould emphasises, he took a different view in relation to Phase 1 in respect of which, viewed on its own, he would have found substantial compliance with the SEA Directive (para 168). 47. Furthermore, in his view, even if the SEA Directive had applied, it would not have required more detailed consideration of alternative strategies based on improvements to the existing network, such as the optimised alternative: The Government concluded that alternative strategies for motorways or a new conventional or enhanced existing rail network were not capable of meeting the plan objectives set for high speed rail. It is obviously a contestable view as to whether those objectives should be met, or can be met to a large extent by means other than a new high speed rail network. These alternative strategies could not, however, have constituted reasonable alternatives to the plan for assessment in the SEA, since they are incapable by their very nature of meeting all the objectives for a new high speed rail network. The sifting process whereby a plan is arrived at does not require public consultation at each sift. This whole process has been set out in considerable detail in the many published documents for those who wished to pursue it, but it did not all have to be in an SEA. (para 162) Page 18

20 48. On that view, which was not challenged before us, application of the SEA Directive would result in more detailed consideration of alternatives such as the reverse S and reverse E configurations, but not of the optimised alternative. Since the optimised alternative is the only one for which the parties before us have expressed any positive support, the SEA process as such may not meet their particular needs (save possibly in respect of HHL s interest in the Heathrow Spur alternatives, although we were told that that aspect is affected by the current study of future airport capacity under Sir Howard Davies). 49. Miss Lieven suggested that the strategic significance of the optimised alternative might require reassessment in the light of more recent ministerial statements about the objectives of HS2. That cannot in my view affect our consideration of the present appeals, which are concerned with the procedural requirements for the DNS at the time it was made. On the other hand, nothing in the DNS prevents arguments and evidence relating to the government s present intentions being presented to Parliament within the current decisionmaking process. This indeed illustrates the practical importance of the distinction, in the context of the SEA Directive, between merely influencing subsequent consideration, and setting limits on the scope of what can be considered. Until Parliament has reached its decision, the merits of all aspects of the HS2 project, on economic, environmental and other grounds, remain open to debate. Aarhus 50. It is convenient at this point to deal briefly with Mr Elvin s related argument under article 7 of the Aarhus Convention. That article requires provision to be made for the public to participate in the preparation of plans and programmes relating to the environment. It is to be noted that this article refers to plans and programmes in general, without the qualifications found in the SEA Directive definition. It is not suggested, having regard to the extent of public consultation which has already taken place on the HS2 project, that there has been any breach of this requirement taken on its own, even assuming the DNS to be a plan or programme within the meaning of this article. Instead the argument, as I understand it, is that the SEA Directive must be interpreted in such a way as to ensure conformity with the Convention, which in turn requires that any plans or programmes covered by article 7 are also subject to the SEA procedure. 51. The majority of the Court of Appeal rejected this argument. They said (para 63): Page 19

21 our conclusion that the DNS is not a plan or programme setting the framework for future development consent does not in our view involve any incompatibility with article 7. If a plan or programme does not set the framework, it is difficult to see how article 7 can have been intended to apply to it. In such a case, the requisite degree of public participation can be achieved through compliance with the requirements of the EIA Directive in the development consent procedure for a specific project. Sullivan LJ was unpersuaded by this reasoning. He thought that consultation under the EIA Directive was an inadequate response to article 7, because by that time strategic alternatives will have been foreclosed by the legislative process and the pass will have been sold. (para 178) 52. To my mind there is a more fundamental objection to Mr Elvin s argument. There is no reason to assume that article 7 and the SEA Directive are intended to cover exactly the same ground. The differences in wording are clear and must be assumed to be deliberate. Indeed the UNECE guidance on the Convention (The Aarhus Convention: An Implementation Guide 2 nd Ed 2013 p ) accepts that its reference to plans and programmes relating to the environment is broader than the equivalent definition in the SEA Directive. The SEA Directive must be interpreted and applied in its own terms. If this falls short of full compliance with the Aarhus Convention, it does not invalidate the directive so far as it goes. It simply means that a possible breach of the Convention may have to be considered as a separate and additional issue. In the present case the point is academic because no such breach is alleged. CJEU reference 53. It will be apparent from what I have said that I do not find it necessary to make a reference to the CJEU in this case. I am conscious of the disagreement between the very experienced members of the Court of Appeal. However, they differed principally not on the formulation of the test, but on its application to the facts of the case, and in particular to the workings of the parliamentary process under domestic law. Although I have taken a rather different view of the appropriate legal test, that is because I have attached more importance to the guidance contained in the words of the court itself in the trilogy of cases to which I have referred. 54. This seems to me the kind of case which Advocate General Jacobs had in mind when (in Case C-338/95 Wiener S.1. GmbH v Hauptzollamt Emmerich [1997] ECR I-6495, para 61) he referred to the emergence of a body of case Page 20

22 law developed by the CJEU to which national courts and tribunals can resort in resolving new questions of Community law: Experience has shown that that case law now provides sufficient guidance to enable national courts and tribunals - and in particular specialised courts and tribunals - to decide many cases for themselves without the need for a reference... That approach is also reflected in the recommendation issued by the court in September 2012, to which Lord Sumption has referred. Conclusion 55. For these reasons, and those given by Lord Reed on the issues covered in his judgment, I would dismiss the appeals. LORD REED (with whom Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Sumption and Lord Carnwath agree) Hybrid bill procedure and the EIA Directive 56. As Lord Carnwath has explained, the appeal brought by the London Borough of Hillingdon and nine other local authorities raises the question whether the hybrid bill procedure, under which Parliament is being invited to authorise the HS2 project by Acts of Parliament, is compliant with the requirements of the Environmental Impact Assessment Directive (Directive 2011/92/EU, OJ 2012, L 26/1, the EIA Directive ). In particular, the appellants seek the quashing of the Government s decision, announced in the DNS, to pursue a hybrid bill for each phase of the Y network, and to introduce a hybrid bill by the end of 2013 to provide the necessary powers to construct and operate Phase 1. The question is also raised, on behalf of the respondents, whether it is appropriate for the court to consider the compatibility of the Parliamentary procedure with the EIA Directive at the present stage, or whether that issue should be considered only after the Parliamentary procedure has been completed. It is convenient to consider those questions together, as they are to some extent inter-related. Page 21

23 Hybrid bill procedure 57. It may be helpful at the outset to explain what is meant by hybrid bill procedure. A hybrid bill shares certain characteristics of a public bill and a private bill. The Speaker has defined a hybrid bill as "a public bill which affects a particular private interest in a manner different from the private interests of other persons or bodies of the same category or class" (Hansard (HC Debates), 10 December 1962, col 45). This hybrid character influences the Parliamentary procedure: a hybrid bill proceeds as a public bill, with a second reading, committee report and third reading, but with an additional select committee stage after the second reading in each House, at which objectors whose interests are directly and specifically affected by the bill (including local authorities) may petition against the bill and be heard. Parliamentary standing orders make provision for those persons who have standing to lodge a petition. 58. It is for Parliament and not the Government to determine the Parliamentary procedure for a hybrid bill laid before it. It is however a matter of agreement between the parties that, in the case of the hybrid bill for Phase 1 of HS2, the principle of the bill will be set upon the bill s receiving a second reading following debate, subject to the Government whip, in the House of Commons. It is expected that the principle of the bill will extend to a high speed rail line running between London, Birmingham and the West Midlands, with its central London terminus at Euston and a link to HS1 (ie the Channel Tunnel Rail Link). It is also common ground that the established convention is that a select committee for a hybrid bill cannot hear petitions which seek to challenge the principle of the bill, unless instructed to do so by the House at second reading (Erskine May s Treatise on the Law, Privileges, Proceedings and Usage of Parliament, 24th ed (2011), ed Jack, p 656). Under the Parliamentary procedures as currently envisaged by the Government, matters that go to the principle of the bill will not be considered by the select committee. Such matters would be expected to include the business case for HS2, alternatives to the high speed rail project and alternative routes for Phase 1. The principle of the bill could in theory be re-opened at third reading, but that debate also will be subject to the Government whip. The relevant standing orders 59. In order to understand the arguments, it is also necessary to note the relevant Parliamentary standing orders ( SOs ). SO 27A for Private Business requires that a bill authorising the carrying out of works the nature and extent of which are specified in the bill must be accompanied by an environmental statement, which must be available for inspection and for sale at a reasonable price. The environmental statement must contain the information required by Page 22